Arthur Jordan Piano Company, Inc. v. Lewis
Decision Date | 24 January 1930 |
Citation | 154 A. 467,34 Del. 423 |
Court | Delaware Superior Court |
Parties | ARTHUR JORDAN PIANO COMPANY, INCORPORATED, a corporation created by and existing under the laws of the State of Virginia, v. JAMES E. LEWIS |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Superior Court for New Castle County, January Term, 1930.
Summons Case, No. 21, November Term, 1927.
Action by the plaintiff to recover $ 2,267.00 with interest from April 16, 1925, being the alleged balance due on the purchase price of a musical instrument known as an American Fotoplayer.
The instrument in question was purchased under a conditional sale contract and was for the use of the defendant in his theatre at Middletown, Del. The total agreed purchase price was $ 3,600, subject to a credit allowance of $ 400 for the old instrument which had been in the defendant's theatre, and was to be paid in weekly installments until fully paid.
The plaintiff, also, admitted credits on the purchase price amounting to $ 933; this left a balance due, according to the claim of the plaintiff, of $ 2,267.
The conditional sale contract sued on was admitted in evidence and in addition to the title clause among other things provided:
The defendant admitted the execution of the contract, the delivery of the Fotoplayer and its acceptance by him, but claimed that he was entitled to a further credit on the purchase price of $ 2,112.50. In support of this contention he, in substance, testified that when he purchased the instrument in question for his Middletown theatre, he also purchased an organ for the Plaza Theatre Corporation of Milford, Delaware, of which corporation he was the president; that the purchase price of such organ was $ 5,250, and that the agent of the plaintiff had then agreed to allow him a credit of twenty-five per cent on the total purchase price of the two organs if he would use his best efforts to advertise the plaintiff's organs and pianos throughout the State of Delaware, for a reasonable time, and to recommend such instruments to prospective purchasers.
The defendant further testified that he had fully performed his part of this independent or collateral agreement with the plaintiff's agent, but that the plaintiff company had failed to allow him the credit or allowance of $ 2,112.50 agreed upon. He admitted, however, that after deducting the credit claimed by him, he still owed the plaintiff company the sum of $ 54.50, with lawful interest from April 16, 1925.
The following letter from Ricksacker, the plaintiff's agent who made the sale of the musical instrument in question, referred to in the contract sued on, was offered in evidence, by the defendant, and admitted without objection:
Before the case was submitted to the jury, Logan, attorney for the plaintiff, moved to strike out the defendant's testimony as to the alleged agreed credit of $ 2,112.50.
This motion was based on the contention that the authority of Ricksacker to enter into such agreement had not been shown. In support of this motion, Mr. Logan made the following argument:
Parties dealing with an agent, known to be such by them, must take notice of the nature and extent of his authority, and are bound at their peril to notice the limitations upon the authority granted. Mechem on Agency (2d Ed.), vol. 1, §§ 742, 743, etc.; Brager v. Levy, 122 Md. 554, 90 A. 102; American Mailing, etc., Corp. v. Widener, 260 Pa. 375, 103 A. 875; Moore v. Luzerne County, 262 Pa. 216, 105 A. 94; Smith v. Myers, 130 Md. 64, 99 A. 938; Milwaukee, etc., Co. v. Coal Co., 294 Pa. 238, 144 A. 100; Hann v. Freestone, 99 N. J. Law 357, 123 A. 701; Sloan v. Brown, 228 Pa. 495, 77 A. 821, 139 Am. St. Rep. 1019.
An agent authorized to sell cannot make any other contract which will be binding on his principal. National Cash Register Co. v. Brainson, 37 R. I. 462, 93 A. 645; Davison v. Parks, 79 N.H. 262, 108 A. 288; Clark v. People's Bank, 136 Md. 263, 110 A. 518; Brager v. Levy, 122 Md. 554, 90 A. 102; Auto Outing Co. v. McFrederick, 146 Md. 106, 125 A. 886; E. D. Keyes & Co. v. U. P. Tea Co., 81 Vt. 420, 71 A. 201.
One seeking to charge a principal for an agent's act must prove the agent's authority to so bind his principal. E. R. Thomas, etc., Co. v. Seymour, 92 Conn. 412, 103 A. 122; Shields v. Hitchman, 251 Pa. 455, 96 A. 1039; American Mailing, etc., Corp. v. Widener, 260 Pa. 375, 103 A. 875. See Hann case, supra.
Existence of agency for one purpose will not establish existence for another. Oxweld Acetylene Co. v. Hughes, 126 Md. 437, 95 A. 45, L. R. A. 1916B, 751, Ann. Cas. 1917C, 837; Deane v. Big Spring, etc., Co., 138 Md. 388, 113 A. 891.
Declarations of agent not competent to prove his authority. Curran v. Nat. Life Ins. Co., 251 Pa. 420, 96 A. 1041; Hileman v. Falck, 263 Pa. 351, 106 A. 633; Look v. Watson, 117 Me. 476, 104 A. 850; Dearholt Motor, etc., Co. v. Merritt, 133 Md. 323, 105 A. 316; Roland v. People's Bank, 134 Md. 218, 106 A. 570; Siller v. Philip, 107 Conn. 612, 141 A. 872; Beaudette v. Cavedon, 50 R. I. 140, 145 A. 874; Kroll v. Phila., 240 Pa. 131, 87 A. 292; First Nat. Bank v. Bertoli, 87 Vt. 297, 89 A. 359, Ann. Cas. 1917B, 590; Taplin & Rowell v. Harris, 88 Vt. 15, 90 A. 956; Oxweld Acetylene Co. v. Hughes, 126 Md. 437, 95 A. 45, L. R. A. 1916B, 751, Ann. Cas. 1917C, 837; Leonard v. Standard Aero Corp., 95 N. J. Law 235, 112 A. 252; Geremia v. Targlianetti, 45 R. I. 197, 121 A. 121; Deane v. Big Spring Distilling Co., 138 Md. 388, 113 A. 891; and Wilson v. Kelso, 115 Md. 162, 80 A. 895.
As Mr. Southerland contends that the parol agreement entered into between Ricksacker and the defendant was a separate agreement having its own separate consideration and was not related to the agreement upon which the plaintiff is bringing suit, his authorities that evidence of a collateral agreement is admissible where such agreement constituted a part of the consideration of the written agreement would not be applicable. If, however, and as the plaintiff contends, the parol agreement is merely an attempt to vary and modify the terms which have been reduced to writing and is an attempt to show that there is another agreement inconsistent with the written agreement, then the parol agreement would be inadmissible.
22 C. J. 1248. Numerous cases cited.
"An express statement in the writing that it constitutes the entire agreement between the parties is of course sufficient to exclude parol evidence to show a further agreement with respect to the same subject matter; and conversely, where the writing expressly recognizes the existence of other agreements between the parties, these may be shown." 22 C. J. 1253. Numerous cases cited.
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